FUNCTIONAL CONSTITUENCIES A Unique Feature of the Hong Kong Legislative Council Civic Exchange believes it is possible to make decisions about public issues in an open and creative manner The secret to successful participatory decisionmaking lies in establishing better communications between well-informed people This is the objective of the Civic Exchange Guides They are intended for any one seeking to participate in the dialogue on public affairs in Hong Kong or shape decision-making on a particular issue CIVIC EXCHANGE GUIDES Getting Heard: A Handbook for Hong Kong Citizens (2002) Building Democracy: Creating Good Government for Hong Kong (2003) Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council (2006) FUNCTIONAL CONSTITUENCIES A Unique Feature of the Hong Kong Legislative Council Edited by Christine Loh and Civic Exchange Hong Kong University Press 14/F Hing Wai Centre Tin Wan Praya Road Aberdeen Hong Kong © Hong Kong University Press 2006 ISBN-13: 978-962-209-790-2 ISBN-10: 962-209-790-1 All rights reserved No part of this publication may be reproduced or transmitted, in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage or retrieval system, without prior permission in writing from the copyright owner British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Secure On-line Ordering http://www.hkupress.org Printed and bound by ColorPrint Production Ltd, Hong Kong, China Civic Exchange dedicates this book to Peter and Nancy Thompson, who have been the most steadfast supporters of our work Civic Exchange Civic Exchange is a Hong Kong–based public policy think tank that was established in October 2000 It is registered as a charity in Hong Kong Its mission is to: • Promote civic education among members of the community and for such purpose to conduct research and publicise the results so as to provide objective and balanced information to the public concerning economic, social and environmental issues • Undertake research on the development of economic, social and political policies and practices to help shape the breadth and depth of public policy debate and so to provide well-founded and reasoned argument on the issues identified above You can find out more about Civic Exchange at www.civic-exchange.org Civic Exchange Room 701, Hoseinee House, 69 Wyndham Street, Central, Hong Kong Tel: (852) 2893 0213, Fax: (852) 3105 9713 Functional Constituency Research Project Functional constituencies have long been a feature of Hong Kong’s political landscape Now, with half the members of Legislative Council elected from functional constituencies, they play a large and controversial part in Hong Kong’s political system Despite this, information about them is shamefully hard to find This book is published as part of Civic Exchange’s Functional Constituency Research Project The aim of the Project is to help the public understand more fully an important part of Hong Kong’s political and electoral systems Contents PREFACE xvii ABOUT THE AUTHORS xix Christine Loh INTRODUCTION Christine Loh SCNPC Decision 2004 Research challenge FCs versus GCs ‘Balanced’ or skewed participation? Dispassionate assessment Transparency and corporate voting Accountable to whom? Preserving capitalism Design to thwart legislative initiative Election Committee and its subsectors 10 Chapter organisation 12 CHAPTER Government and business alliance: Hong Kong’s functional constituencies Christine Loh 19 Introduction 19 Background 20 Complexity of colonial rule 21 Politics of appointment 28 Hong Kong’s colonial governing formula 31 Selection of the post-colonial elites and setting of the HKSAR economic policies in the Basic Law 32 Tung’s policies 1997–2005 34 Functional constituencies and electoral reform 36 Concluding observations 38 viii Contents CHAPTER Business friendly and politically convenient — the historical role of functional constituencies Leo F Goodstadt A colonial legacy In the absence of democracy Defeating democracy Bowing to business In search of safety In fear of friends Political paranoia A loss of nerve Populism without democracy Repackaging the past Post-colonial crisis ‘Sun-lit democracy’ CHAPTER Privileged to vote: Inequalities and anomalies of the FC system Simon N.M Young and Anthony Law 41 41 42 44 45 46 47 49 50 52 54 55 56 59 Introduction 59 The functional constituency system 60 Definition and rationale 60 Functional and geographical constituencies 63 Arrangements of the 2004 election 66 Historical development of functional constituencies 67 The recognition and grouping of functions 74 Relative size of functional constituencies 79 The functional constituency electorate 81 Three methods of elector determination 81 Individual electors 91 Corporate electors 93 Electorate configurations in FCs 102 Summary of findings and conclusions 103 Findings 103 Conclusions 107 Contents ix CHAPTER Elected by the elite: Functional constituency legislators and elections Simon N.M Young 111 Introduction 111 Functional constituency legislators 112 Eligibility preconditions for being an FC legislator Exclusive Chinese nationality restriction Background of the legislators Methods of communication with electorate Quantitative performance of legislators in 2000–2004 Functional constituency elections Contested and uncontested FCs Registration and voter turnout rates Summary of findings and conclusions Findings Conclusions CHAPTER 112 120 123 126 128 133 133 135 136 136 140 143 The legal status of functional constituencies Gladys Li and Nigel Kat The Basic Law The International Covenant on Civil and Political Rights The way forward Summary 143 144 150 150 Annex 152 Relevant provisions of the Basic Law 152 Relevant provisions of the International Covenant on Civil and Political Rights 154 CHAPTER Comparative profiles and attitudes of FC voters versus GC voters in the 2004 LegCo election campaign Michael E DeGolyer Executive summary Unfairness and its effects Methods and meaning Characteristics of FCs and GCs Attitudinal characteristics of GCs and FCs 155 155 156 159 163 172 Annex 191 376 Notes to Chapter intention of the authors to engage in this debate except to suggest that all political processes and negotiations prior to formal voting are in essence deliberative processes, formal decision making takes place only when the vote is taken The Basic Law, Annex II During the first two legislatures between 1998 and 2004, however, there had been a third category of members, namely, Election Committee (EC) members, 10 in 1998–2000 and six in 2000–2004 Together with the geographical representatives, they composed half of the legislature during the six years under study Election Committee members were elected on electorates largely similar to those of the functional constituencies plus representation for stipulated political bodies See The Basic Law, Annex I Election Committee members will be referred to as ‘ECR’s in this report Electoral Affairs Commission, http://www.eac.gov.hk/en/legco/2004.htm Anson Chan (former Chief Secretary of Administration), ‘Hong Kong Gears Up for a World Without Walls’, in Information Services Department, Hong Kong SAR Government, Hong Kong 1999 Hong Kong: The Printing Department, pp 1–7 10 Joan Y.H Leung, ‘Functional Representation in Hong Kong: Institutionalization and Legitimization of the Business and Professional Elites’, The Asian Journal of Public Administration Vol 12, No 2, p 171 11 There is no common consensus on the definition and scope of ‘social policy’ It is however said that there exists some consensus among authorities that social policy is mainly concerned with collective interventions to promote individual welfare; social policies are often distinguished from ‘economic policies’ to highlight their ‘integrative functions’ and concerns with the non-economic aspects in human relations See Alan Walker, ‘Social Policy, Social Administration and the Social Construction of Welfare’, in Martin Loney et al., eds., Social Policy and Social Welfare Milton Keynes: Open University Press, 1983, pp 127–150 A local edited volume on social policy in Hong Kong has similarly taken the five policy areas examined in this study as constituting the major established components of social policy, see 12 Functional representation was introduced to Hong Kong in 1985 by the former British colonial government on the basis of two major considerations Firstly, after the Sino-British Joint Declaration of 1984 provided for the return of Hong Kong, then a Crown colony, to Chinese sovereignty in 1997, the colonial administration decided to develop a system ‘to represent authoritatively the views of the people of Hong Kong’ It was considered paramount to give ‘full weight…to representation of the economic and professional sectors of Hong Kong society which are essential to future confidence and prosperity’ Secondly, it was considered that the functional representation system would allow the government to continue to tape expert advice for policy making from major socio-economic and occupational strata, as it had done under the appointment system, only on a more regular and formal basis See A Draft Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Future of Hong Kong, 26 September 1984; White Paper: The Further Development of Representative Government in Hong Kong Hong Kong: Government Printer, November 1984 13 The focus of this study is the role of functional representatives in social policy making, there is therefore no attempt to ascertain the degree of importance that FRs attach to social policy relative to other policies like political or economic policies; furthermore, in order for the findings on the FRs to be better Notes to Chapter 14 15 16 17 18 19 20 21 22 23 24 377 understood in their context, the corresponding performance of GRs/ECRs is brought in for natural comparison where appropriate since the latter composes the other half of the legislature Unless otherwise specified, the explication below on questions to the government is based on the Rules of Procedure of the Legislative Council of the Hong Kong Special Administrative Region (hereafter Rules of Procedure), Part E The Labour constituency has three functional representatives, one of whom was re-elected to the second legislature, hence the number here is five rather than six For this reason, in the following tables, calculations will be entered for Housing as it is done here, but the substantive discussion will not include the housing area A speculative reading of Housing-related statistics in the tables will be made in the conclusion of this part For rules governing the movement of debate motions and amendments, see Rules of Procedure, Part G The statistics in this section not include the final votings on the amended debate motions because these were more of a formal procedure as all substantive amendments would have already been voted on The law-making process in Hong Kong involves three Readings of a draft law The First Reading is only a formal procedure of reading out the title of a bill, followed by the Second Reading at which the government will explain the main points The Second Reading is then adjourned for legislators to consider and conduct consultations During this intermission, if legislators deem necessary, a Bills Committee may be set up to scrutinise the bill in detail, sometimes even to receive submissions from different lobbies or to conduct public hearings Upon resumption of the Second Reading, amendments can be moved to specific provisions either by the government or legislators Such amendments will be voted on one by one, sometimes after heated debate When all the amendments have been voted on, the bill passes to the Third Reading at which a final vote is taken on the whole draft law The bill becomes law if passed by the legislature Before the resumption of the Second Reading, it is possible that the government and legislators will negotiate over particular provisions If no satisfactory resolution is found, legislators may then have to conduct ‘open warfare’ on the floor of the legislature by moving amendments to the government motions Labour issues were within the terms of reference of the Manpower Panel For the first term (1998–2000): http://www.legco.gov.hk/yr99-00/english/counmtg/general/counmtg.htm The Basic Law, Annex II This number contains five motions falling not under the social policy bills studied but under the Mass Transit Railway Bill, included because their contents explicitly pertained to labour rights and welfare In other words, as far as the 29 social policy bills examined for this study are concerned, there were only 24 Division votings A voting is the collective act of legislators taking a vote, the result of which is determined by the sum of legislators’ individual votes The figure excludes votings on motions which were solely procedural in nature, such as suggesting the suspension of certain rules of procedures or for voting to proceed after a certain duration All amendments to bills motions involving Division votings were moved by GRs and only FR and GR voting patterns are compared There may be different possible reasons for this: (1) policy differences could have been resolved before resumption of the Second Reading; (2) some members could have persisted in moving amendments but were resigned to their amendments being defeated and therefore did not ask for a Division; or (3) some bills motions 378 25 26 27 28 29 30 Notes to Chapter and amendments were relatively minor or technical in nature and therefore were not controversial At present there are mainly three kinds of schools in Hong Kong, namely, aided schools, schools under the Direct Subsidy Scheme (DSS), and government schools Very briefly, aided schools are schools fully funded by the government but managed by school sponsoring bodies under the Codes of Aids DSS schools also receive funding from the government but on a student per capita basis DSS schools recruit students on their own and enjoy greater freedom than aided schools, for example, they can charge their students approved amounts of school fees, they are also free to design the school curriculum and use either Chinese or English as the medium of instruction Government schools are funded and managed by the government Aided schools have constituted a large portion of schools in Hong Kong In the 2003/04 school year, there were 785 primary schools and 501 secondary schools in Hong Kong See Education and Manpower Bureau, http://www.emb.gov.hk/index.aspx?nodeid=2062&langno=1, 2004 See Hong Kong Legislative Council, ‘Report on the Bills Committee on Education (Amendment) Bill 2002’, LC Paper No CB(2)2967/03–04, p The Board of Education was established in 1920 Its role was to advise the then Director of Education on the practice of education policies Its members included professionals in the education sector, community leaders, representatives of parents’ groups and government officials As the Education Department was merged with the Education and Manpower Bureau in 2003, the Board of Education was also merged with the Education Commission, which is also an advisory body on education policy Unlike the Board of Education, which focused more on specific practices of education policies, the Education Commission advises on the comprehensive and long-term development of education policy in Hong Kong The Bishop had been very critical of the way the government attempted to legislate for state security in 2003 as well as its inaction in tackling poverty problems 31 Hansard, July 2004 (Floor), p 798 32 For example, it would be a criminal offence if a school allows a student who has been expatriated to enter and stay in school premises without the permission of the PSEM; it would also be a criminal offence if more than one student per two square metres stands in the corridor, playground or balcony of a school 33 Ming Pao 17 December 2004 34 Panel membership is basically on a yearly basis A LegCo member may, for different reasons, join and leave a Panel at any point during a legislative session In this particular case, the membership was relatively stable in the whole term of the LegCo 35 There were 11 members at the outset of the Bills Committee Yeung Sum left the Bills Committee after its second meeting on 17 March 2003 36 Among the 11 amendments, four were not put to the vote because they conflicted with preceding amendments moved by the government which had been passed 37 According to the Basic Law as well as the LegCo Rules of Procedure, a private member’s motion requires a majority in each of the two ‘chambers’ created by the split-voting system to pass This split divides LegCo into the 30 functional Notes to Chapter 38 39 40 41 42 43 44 45 46 47 48 49 379 representatives on one hand, and the 24 geographical representatives and six Election Committee members on the other Even if a bill is passed in one chamber, if it is not passed in the other, the bill will be negatived Confer Part I, ‘Voting patterns’ above Hansard, July 2004 (Floor), p 779 Ibid., p 780 Ibid., p 782 Ibid., pp 754–758, and 847–848 Ibid., pp 782–783 Ibid., pp 758–760 Ibid., pp 776–778 Ibid., pp 769–770, 885–887, and 897–898 Hong Kong Legislative Council, LegCo Panel on Education, minutes of meeting held on 20 November 2000, LC Paper No CB(2)668/00–01, p The idea of Lump Sum Grant was put into practice in the social welfare sector in 2000 Under this system, the staffing levels of aided welfare agencies are not standardised, agencies are given a lump sum to spend as they choose, including idiosyncratic staffing and structures The teachers’ association worried that the system would sooner or later be introduced to the education sector and teachers would probably face a wage cut as a result Hong Kong Legislative Council, Bills Committee on Education (Amendment) Bill 2002, minutes of meeting held on 12 February 2004, LC Paper No CB(2)1491/03–04, pp 5–6; and 21 April 2004, LC Paper No CB(2)2305/03–04, pp 4–5 For example, 50 Hong Kong Legislative Council, Bills Committee on Education (Amendment) Bill 2002, minutes of meeting held on Thursday, 30 October 2003, LC Paper No CB(2)302/03–04, p 51 Ibid., minutes of meeting held on March 2004, LC Paper No CB(2)1676/03–04, p 52 Ibid., minutes of meeting held on 27 May 2004, LC Paper No CB(2)3109/03–04, p 53 The Regulation was not in itself a bill as such but was made under the Occupational Safety and Health Ordinance So instead of a bills committee, it was scrutinised by a subcommittee Confer Note 54 54 In November 1999, the government had consulted the legislature’s Panel on Manpower on the Regulation and members resolved that controversial and technical aspects of the Regulation could be further discussed when it was brought forth for the Council’s examination As much of the subsequent debate and political wrestling on the Regulation had taken place in the legislature’s House Committee and the Subcommittee it set up for the purpose, the Panel had not been a main theatre of activity and therefore will not be referred to again The House Committee comprises all legislators except the President of the Council It prepares for meetings of the Council and considers matters relating to the Council’s business It may form bills committees to scrutinise bills, or appoint subcommittees to study some subsidiary legislation in greater detail See the minutes of the Manpower Panel meeting on 25 November 1999 at http://www.legco.gov.hk/yr99-00/english/panels/mp/minutes/mp251199.pdf 55 These included submissions from the Hong Kong Information Technology Federation which was against the introduction of the Regulation, and from the 380 56 57 58 59 60 61 62 63 64 65 Notes to Chapter Hong Kong Information Technology & Network Engineering Employees Association, Hong Kong Communication Industry Employees Association, and Hong Kong Workers’ Health Centre, which were in support Recall that motions moved by legislators have to be subject to the split-voting mechanism See Part I, section H above As a general principle, strict liability would be imposed on regulatory offences related to issues of social concern, of which employee occupational safety was considered as one In such offences, the requirement of mens rea (namely, knowledge, recklessness or negligence) before a person could be convicted of a criminal offence would be displaced Employees would also be liable to offences for non-compliance with the Regulation but the provision had not attracted strong disagreement in the deliberations The above has only highlighted those provisions of the Regulation that were to subsequently attract controversy For the initial proposed Regulation and the related risk assessment checklist and advisory Health Guide, see ‘Legal Service Division Report on Motion under section 42 of the Occupational Safety and Health Ordinance (Cap 509)’, paper for the House Committee Meeting of the Legislative Council on 24 November 2000, http://www.legco.gov.hk/yr00-01/english/hc/papers/ls-23.pdf, and Education and Manpower Bureau, ‘Occupational Safety and Health (Display Screen Equipment) Regulation’, Legislative Council Brief, November 2000, EMBCR 3/3/3231/95 The request was made by Lee Cheuk-yan, a unionist legislator, at the Subcommittee meeting on 29 May 2001 Under section 40 of the Occupational Safety and Health Ordinance, the Commissioner for Labour is empowered to issue codes of practice for the purpose of providing practical guidance to employers and employees According to section 41 of the Ordinance, while a person does not incur a civil or criminal liability for contravening a provision in a workplace code of practice, the code is however admissible in evidence in court proceedings See Subcommittee meeting minutes of 29 May 2001, p 9, ¶ 33 See speech by the Secretary for Education and Manpower, Hansard, 24 April 2002, pp 5808–9 Secretary for Education and Manpower, Hansard 24 April 2002, p 5766 ‘Administration’s Response to Issues raised by Members at the Subcommittee meeting on 21 December 2001’, LC Paper No CB(2)949/01–02(01) James To, of the Democratic Party, minutes of the House Committee meeting held on November 2001, p 13 Namely, Eric Li of Accountancy, Kenneth Ting of Industrial (First), Raymond Ho of Engineering, Henry Wu of Financial Services, Miriam Lau of Transport and Howard Young of Tourism See minutes of the House Committee meeting held on November 2001 See for example, Miriam Lau in the Subcommittee meeting on 18 June 2001 and James Tien in the voting debate In this connection, there have been a couple of exceptions Henry Wu of Financial Services did repeatedly advise in Subcommittee meetings that in his sector, small work surfaces for finance, securities and foreign exchange dealers or the use of notebook computers would pose practical difficulties for employers to comply with the requirements for DSE workstations Howard Young of Tourism in the voting debate also made mention that, in the tourism industry, front-line employees of travel agents, airlines and hotels would not normally use computers for continuous prolonged periods of time and that it would only cause unnecessary impediment and affect efficiency if the Regulation was imposed on such industries Notes to Chapter 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 381 Supra Note 62 Hansard 24 April 2002, p 5780 Ibid., pp 5797–5799 Ibid., pp 5792–5795 Ibid., pp 5784–5787 Ibid James Tien, Hansard 24 April 2002, pp 5803–5808 See for example, minutes of the Subcommittee meeting on 14 December 2000, 17 January 2001, May 2001, 29 May 2001, and 14 June 2001 Leung Fu-wah, Hansard 24 April 2002, pp 5781–5784 Lo Wing-lok, Hansard 24 April 2002, p 5795 Ibid., p 5797 See for example Subcommittee meeting minutes of May and 18 June 2001 Sin Chung-kai, Hansard 24 April 2002, p 5800 See Sin Chung-kai, letter to the Subcommittee chairman, dated January 2002, LC Paper No CB(2)820/01–02(01) House Committee meeting minutes of November 2001 Miriam Lau, Hansard 24 April 2002, p 5799 It should be pointed out that ‘hard’ data on membership and attendance rates of panels and committees have to be distinguished from the frequency and quality of input during meetings It has been shown in the DSE case study, for example, that while Ms Li Fung-ying, a Labour FR, attended Subcommittee meetings, her distinct input was in fact quite minimal The same applies to Mr Mak Kwok-fung Notes to Chapter Author’s note: Interpretation of the material inevitably involves a degree of subjective judgement I have tried to be fair to all the persons involved If, however, by reason of omission or mistaken interpretation, I have given any unjustified offence, I apologise I am personally responsible for the views expressed here, and no blame or attribution should attach to the Civic Exchange or the University of Hong Kong Following the 2004 LegCo elections the Breakfast Group has mutated into a somewhat more formal grouping, referred to as The Alliance, but it still does not claim to be a fully fledged political party Official Record of Proceedings, Hong Kong Legislative Council Notes to Chapter Peter Woo, ‘Democracy is Bad for Business’, South China Morning Post, 16 December 2003 The description of Hong Kong as ‘an economic city’ was first coined by Lu Ping, a former director of the Hong Kong and Macao Affairs Office Lu also said that Hong Kong was ‘not a political city’ He never defined these terms explicitly, but according to Michael Yahuda in his book Hong Kong: China’s Challenge, Chinese officials, when asked in private, said that they feared the ‘emergence of many quarrelling parties who would prevent the passing of government bills in the Legislative Council That would diminish the effectiveness of government and cause foreign investors to doubt the territory’s political stability Hong Kong 382 10 11 12 13 14 15 16 17 Notes to Chapter would then cease to be an international financial centre.’ See Michael Yahuda Hong Kong: China’s Challenge, London, New York, Routledge, 1996 Patten expanded the size of the FCs’ electorate from 100,000 to 2.7 million He also did away with corporate voting After the handover, a Preparatory Committee set up by the National People’s Congress revised the FC electorate size down to approximately 230,000 individuals and corporations for the 1998 election See Chapter 3, Simon Young & Anthony Law, A Critical Introduction to Hong Kong’s Functional Constituencies Legislative Council Panel on Constitutional Affairs, Task Force on Constitutional Development, 2004, http://www.info.gov.hk/cab/cab-review/eng/legco/pdf/taskforce-e.pdf The Fourth Report of the Constitutional Development Task Force: Views and Proposals of Members of the Community on the Methods for Selecting the Chief Executive in 2007 and for Forming the Legislative Council in 2008, p 31–32, http://www.cab.gov.hk/cd/eng/report4/ Cheung Chi-fai, ‘HK Urged to Stick to Its “Eternal Theme” — Developing the Economy’, 27 April 2004, South China Morning Post For a detailed analysis of the FCs’ electorate, see Chapter 3, A Critical Introduction to Hong Kong’s Functional Constituencies, Simon Young & Anthony Law Selina Chow, Letter to Hong Kong, broadcast on RTHK’s Radio 3, 18 January 2004 http://www.rthk.org.hk/rthk/radio3/lettertohongkong/20040118.html accessed on 29 January 2004 September 2004 projection, US Congressional Budget Office, http://www.cbo.gov/showdoc.cfm?index=5773&sequence=0 Fareed Zakaria’, The Future of Freedom: Illiberal Democracy at Home and Abroad, W.W Norton & Company, 2003 Political scientists note that successful democratisation tends to take place in countries with a per capita GDP above HK$24,000 For example, see the interview with Francis Fukuyama in New Perspectives Quarterly, volume 21 #3, Summer 2004 http://www.digitalnpq.org/archive/2004_summer/fukuyama.html Jonathan Weisman, ‘The Tax Cut Pendulum and the Pit’, Washington Post, October 2004, http://www.washingtonpost.com/wp-dyn/articles/A16134-2004Oct7.html Brookings Institution, William G Gale and Samara R Potter, ‘The Bush Tax Cut: One Year Later’, June 2002, http://www.brookings.edu/comm/policybriefs/pb101.htm The government’s concessions to corporations often come in the form of free land, e.g Cyberport, West Kowloon Cultural District, cruise terminal proposals, Lok Ma Chau development proposals Public land can be given away without registering on the government’s expenditure accounts, giving the superficial impression of fiscal restraint Human Development Report 2005, World Bank, 2003 data, http://hdr.undp.org/statistics/data/indicators.cfm?x=133&y=2&z=1 Human Development Report 2005, World Bank, 2005 data, http://hdr.undp.org/statistics/data/indicators.cfm?x=148&y=2&z=2 Hong Kong is a net creditor, with foreign assets in 2003 amounting to an enormous 253% of GDP in 2003 See Hong Kong’s International Investment Position 2003, HKSARG press release, http://www.info.gov.hk/gia/general/200406/17/0617148.htm and also Joseph Yam, Hong Kong’s International Investment Position, 2002, http://www.info.gov.hk/hkma/eng/viewpt/20020627e.htm Notes to Chapter 383 18 Human Development Report 2005, World Bank, 2003 data, http://hdr.undp.org/statistics/data/indicators.cfm?x=133&y=2&z=1, and CIA World Factbook, http://www.cia.gov/cia/publications/factbook/ 19 In previous elections in 1998 and 2000, the proportion of geographically elected legislators was even smaller due to the presence of legislators elected by an election committee that also selected the chief executive The composition of the election committee was similar to that for the FCs In 1998, there were 10 election committee elected members and in 2000, there were six For a discussion of the election committee, see Chapter 20 Leo Goodstadt, Uneasy Partners: The Conflict Between Public Interest and Private Profit in Hong Kong, p 120–21, 132–35, Hong Kong University Press, 2005 21 Article 159 of the Basic Law states the following: The power to propose bills for amendments to this Law shall be vested in the Standing Committee of the National People’s Congress, the State Council and the Hong Kong Special Administrative Region Amendment bills from the Hong Kong Special Administrative Region shall be submitted to the National People’s Congress by the delegation of the Region to the National People’s Congress after obtaining the consent of two-thirds of the deputies of the Region to the National People’s Congress, two-thirds of all the members of the Legislative Council of the Region, and the Chief Executive of the Region Before a bill for amendment to this Law is put on the agenda of the National People’s Congress, the Committee for the Basic Law of the Hong Kong Special Administrative Region shall study it and submit its views No amendment to this Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong 22 This is an internal advisory group within the government with no legal power Since 1998, COMPAG has investigated and reported on alleged anti-competitive business practices, but was unable to force the government to take any action against them Moreover, it appears to have inconsistent definitions of what constitutes anti-competitive behaviour For example, it denied that a 1998 agreement between property developers owning adjacent sites to share information and coordinate marketing constituted anti-competitive behaviour See Peter Roth QC et al., Is Hong Kong Anti-competitive?, p 21, 10 February 2003, http://www.civic-exchange.org/publications/2003/Competition.doc 23 Six out of 28 FCs have electorates composed entirely of individual people belonging to certain professions, such as medicine, law, and social work Most other FCs are composed of a mixture of corporations or recognised associations and individuals, or just corporate bodies 24 Tung Chee Hwa, 2005 Policy Address, http://www.policyaddress.gov.hk/2005/ 25 World Trade Organisation, Trade Policy Review Hong Kong, China (Geneva: World Trade Organisation 2002), p viii 26 http://europa.eu.int/comm/archives/commission_1999_2004/lamy/ /speeches_articles/spla213_en.htm 27 Note, however, that increased competition was not the only factor in reducing prices in telecommunications Economies of scale and lower equipment costs have also played a role in reducing telecommunications prices around the world as well as in Hong Kong 28 Ibid 29 Leo Goodstadt, Uneasy Partners — The Conflict Between Public Interest and Private Profit in Hong Kong, p 129, Hong Kong University Press, 2005 384 Notes to Chapter 30 Civic Exchange, Merging Hong Kong’s Railways: The Public Interest Perspective, December 2004, http://www.civic-exchange.org/publications/2004/railmerger%20-%20E.pdf 31 Christine Loh, Ports, Airports and Bureaucrats: Restructuring Hong Kong and Guangdong, October 2002, p 22–24 http://www.civic-exchange.org/publications/2002/PAB%20report.pdf 32 Legislative Council Meeting, 20 October 2004, Official Record of Proceedings, http://www.legco.gov.hk/yr04-05/english/counmtg/hansard/cm1020ti-translate-e.pdf 33 Ibid., p 602 34 Outward Processing Arrangement, Trade and Industry Department, http://www.tid.gov.hk/textonly/english/import_export/cert/ /cert_othercodoc_outward_1.html 35 Cyberport, an information infrastructure project, press release, HKSAR Government Information Centre, 29 April 1999, http://www.info.gov.hk/gia/general/199904/29/0429180.htm 36 LegCo Finance Committee’s 18th meeting, 21 May 1999, http://www.legco.gov.hk/yr98-99/english/fc/fc/minutes/fcmn2105.htm 37 Yeung Sum, ‘Why Arts Groups Must Not Play Second Fiddle’, http://www.dphk.org/e_site/research/cons031112.htm 38 http://www.sinchungkai.org.hk 39 Sin Chung-kai, ‘More Digital Entertainment Coming Soon’, iBulletin, Hong Kong General Chamber of Commerce, http://www.sinchungkai.org.hk/demo/eng/ /scks_publication/article/2005/article_0101.html 40 Wikipedia, accessed January 2005, http://en.wikipedia.org/wiki/Cyberport 41 LegCo Information Technology and Broadcasting Panel, Report on the Cyberport Project, December 2004, http://www.legco.gov.hk/yr04-05/english/panels/itb/papers/itb0110cb1-588-1e.pdf 42 Foster Wong, ‘Cyberport in red until 2009: report’, Hongkong Standard, 28 December 2004 43 Hans Lombardo, ‘HK Govt, PCG and Yahoo! rally against Cyberport critics’, internetnews.com, 18 March 1999, http://www.internetnews.com/bus-news/article.php/82611 44 ‘Cyber Villas by the Sea’, Webb-site.com, 22 March 1999, http://www.webb-site.com/articles/cybervillas.htm 45 Wikipedia, accessed January 2005, http://en.wikipedia.org/wiki/Cyberport 46 Joseph Tsang, ‘Give Cyberport a Chance to Prove Itself ’, South China Morning Post, 26 January 2005 47 ‘$13 billion Cyberport project announced’, HKSARG press release, March 1999, http://www.info.gov.hk/gia/general/199903/03/0303169.htm 48 David Webb, personal communication, 19 February 2005 49 If we take the agreed figure of $7.8 billion for the residential portion which comprises one-third of the total area, the entire site would have sold for three times that amount, which is $23.4 billion 50 ‘Cyber Villas by the Sea’, Webb-site.com, 22 March 1999, http://www.webb-site.com/articles/cybervillas.htm 51 Legislative Council Meeting, Official Record of Proceedings, 11 February 2004, http://www.hk2030.gov.hk/eng/con_digest/stage3consultation/stage3_fm/ /Legco_biz_e.pdf 52 Ibid., p 3584 53 Working Paper No 32 can be found at http://www.hk2030.gov.hk/eng/wpapers/pdf/wpaper32.pdf Notes to Chapter 10 385 54 Working Paper No 32, pp 16–17 55 Ibid., p 17 56 The London Convention restricts the disposal of dredged material at sea http://www.londonconvention.org 57 Ibid., pp 29–30 58 Ibid., pp 4, 10 and 30 59 Ibid., pp 30–31 60 2030: Planning and Vision Strategy, Stage Public Consultation Focus Meeting on Future of Frontier Closed Area, p 1, http://www.hk2030.gov.hk/eng/con_digest/stage3consultation/stage3_fm/FCA.pdf 61 Abraham Shek, LegCo Meeting February 2004, Official Record of Proceedings, p 2951, http://www.legco.gov.hk/yr03-04/english/counmtg/hansard/cm0204ti-translate-e.pdf 62 Civic Exchange, Merging Hong Kong’s Railways — The Public Interest Perspective, 2004, pp 9–10 http://www.civic-exchange.org/publications/2004/railmerger%20-%20E.pdf 63 Legislative Council Transport Panel Meeting, 28 May 2004, http://www.legco.gov.hk/yr03-04/english/panels/tp/minutes/tp040528.pdf 64 Prices are for 2004 65 Foster Wong, ‘KCRC Says Profit May Slump 78 pc’, The Standard, 10 May 2004 66 Civic Exchange, Merging Hong Kong’s Railways — The Public Interest Perspective, 2004, p 10 http://www.civic-exchange.org/publications/2004/railmerger%20-%20E.pdf Notes to Chapter 10 See Chen Zhiwu, ‘Freedom of Information and the Economic Future of Hong Kong’, presented at ‘Freedom and National Security — Has the Right Balance Been Struck?’, Hong Kong University (14 June 2003), http://www.hku.edu.hk/ccpl/pub/conferences Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, Dec 19, 1984 For a discussion of the structures put in place for democracy in Hong Kong, see generally Report of the Joseph R Crowley Program, ‘Tenth Annual Philip D Reed Memorial Issue Special Report: One Country, Two Legal Systems?’, 23 Fordham Int’l L.J (1999), at 66–89 As Justices Brandeis and Holmes stated in their concurrence to the majority opinion in Whitney v California, 274 U.S 357, 375 (1926): ‘Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary They valued liberty both as an end and as a means They believed liberty to be the secret of happiness and courage to be the secret of liberty They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.’ 386 10 11 12 13 14 Notes to Chapter 10 We have had previous concerns, such as the controversy surrounding the right of abode in Hong Kong and, most recently, the controversy over the proposed Article 23 Legislation, which this Association addressed separately in its Legal Analysis of Certain Provisions of the National Security (Legislative Provision) Bill, Letter from E Leo Milonas, President of The Association of the Bar of the City of New York, to the Clerk of the Bills Committee, Legislative Council of the Hong Kong Special Administrative Region (25 April 2003), http://www.abcny.org/pdf/report/INTERN.pdf, attaching Legal Analysis of Certain Provisions of the National Security (Legislative Provision) Bill Pending Before the Legislative Council of the Hong Kong Special Administrative Region, http://www.abcny.org/pdf/report/30637027.pdf The controversy surrounding Articles 45 and 68 of the Basic Law, and the unsolicited interpretation by the Standing Committee of the NPC in connection therewith, however, represent the first overt instances of direct interference by the central government in the matter of Hong Kong governance without a request from the HKSAR government, the Court of Final Appeal, or any other Hong Kong actor See Moody’s Investors Service, Global Credit Research Issuer Comment (30 April 2004) and Standard & Poor’s Ratings Report 2, 3, 5, (11 May 2004) Gang Bian, Akers-Jones: ‘HK Can’t Just Do Whatever It Wants’, China Daily, 25 March 2004 ‘Vote? You May Wait until 2047’, The Standard (Hong Kong), 25 April 2004 Shiu Sin-por, Editorial, ‘Popular Elections Cannot Secure Good Governance’, The South China Morning Post, Dec 15, 2000 Baker v Carr, 369 U.S 186, 267, 307 (1962) (Frankfurter, J., dissenting) Frankfurter does document, however, that American practice departed from a strict adherence to numerical equality to facilitate local governance, as in apportioning representatives among local government entities such as towns or counties, rather than abstract units of approximately the same population Id This practice nonetheless did not depart from the idea of numerical equality nearly to the extent it did in 18th-century England See infra, text accompanying notes 11–14 See Bernard Bailyn, The Origins of American Politics, 80–89, 100–101 (1968) As population shifted, this system of apportionment led to severe and stark examples of disproportionate representation between various boroughs, the most notorious example being that of Old Sarum, a town deserted in the 16th century and continuously unpopulated but which continued to elect a representative to Parliament until the early 19th century when the system allowing ‘rotten boroughs’ was abolished See J.R.M Butler, The Passing of the Great Reform Bill 236–38 (1964 ed.) Reliance on medieval guilds in this way was the practice in 18th-century London See George Rude, Wilkes and Liberty, 149–55 (1970) Bailyn, supra note 11, at 100–101 (1968) For a more recent general study, see Edmund S Morgan, Inventing the People (1988) See also Gordon S Wood, The Creation of the American Republic, 1776–1787, at 170 (1969) (‘None of [the] electoral safeguards for the representational system, however, was as important to Americans as equality of representation; “in other words,” said John Adams, “equal interests among the people should have equal interests” in the legislatures More than anything else this equality would prevent the “unfair, partial, and corrupt elections” and the “monstrous irregularity” of the English representational system whereby over three hundred members of the House of Commons, as the English radicals never ceased broadcasting, were elected by only Notes to Chapter 10 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 387 a handful of the English population concentrated in numerous “beggarly boroughs”.’) Reynolds v Sims, 377 U.S 533, 564 (1964) (quoting James Wilson, a leader in thought and argument, with James Madison and Gouverneur Morris, of the delegates present at the Constitutional Convention) See also Jack N Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, 224 (1996) (‘Madison had long since concluded that equitable reapportionment of representation was an essential requirement of republican government .’) See John Ferling, A Leap in the Dark: The Struggle to Create the American Republic, 167 (2003) (citing Civis, Pennsylvania Gazette, May 1776) Gordon S Wood, The Radicalism of the American Revolution, 270 (1993) (quoting notes from the Report of the Debates of the New York Convention of 1821) Gray v Sanders, 372 U.S 368, 379 (1963) Reynolds, 377 U.S at 555 Id., at 579 Gray, 372 U.S at 380 Reynolds, 377 U.S at 574 Gray, 372 U.S at 378 Max Farrand, ed., I The Records of the Federal Convention of 1787, at 242 (1937) (emphasis added) Id at 468–469 (quoting Oliver Ellsworth [delegate from Connecticut], as reported by James Madison on 29 June 1787): ‘The proportional representation in the first branch was conformable to the national principle and would secure the large states against the small An equality of voices [in the second branch] was conformable to the federal principle and was necessary to secure the small states against the large He trusted that on this middle ground a compromise would take place He did not see that it could on any other And if no compromise should take place, our meeting would not only be in vain but worse than in vain .’ While the body of electors for which Article II, Section provides is commonly and historically referred to as the ‘Electoral College’, that term is not found anywhere in the Constitution itself US Constitution art I, § 1, cl.1 Jack N Rakove, ‘The E-College in the E-Age’, in The Unfinished Election of 2000, at 201, 213 (Jack N Rakove, ed., 2001) Adrienne Koch, Introduction to James Madison, Notes of Debates in the Federal Convention of 1787, at xii (Adrienne Koch, ed 1966) The Federalist No 68 (Alexander Hamilton) Id For just these reasons, the Association — along with many other institutions — has repeatedly called for a constitutional amendment to the Constitution supporting direct election of both the president and vice president Committee on Federal Legislation, Association of the Bar of the City of New York, Proposed Constitutional Amendment Providing for Direct Election of the President and Vice President of the United States (1992) See also 24 Record of the Association of the Bar of the City of New York 285 (1969) (report calling for same) Article 25(b) establishes that every citizen shall have the right ‘[t]o vote and to be elected at genuine periodic elections which shall be by universal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors’ International Covenant on Civil and Political Rights, G.A Res 2200A 388 34 35 36 37 38 39 40 41 42 43 44 45 46 Notes to Chapter 10 (XXI), 21 U.N GAOR Supp (No 16) at 52, U.N Doc A/6316 (1966), 999 U.N.T.S 171, entered into force Mar 23, 1976 Lawrence D Longley and Neal R Peirce, The Electoral College Primer 2000, at 21 (1999) See The Unfinished Election, supra note 28 at 220 Longley and Peirce, supra note 34, at 24 In the 1876, 1888 and 2000 presidential elections, Samuel J Tilden, Grover Cleveland and Albert Gore, respectively, won a plurality of the popular vote yet lost the election as their respective challengers secured a majority of the electoral votes Some believe that this category of electoral college reversals of the popular vote should include the 1960 presidential race between Republican Richard M Nixon and Democrat John F Kennedy In that election, Nixon lost to Kennedy by 84 electoral votes Different methods of analyzing the election results in the state of Alabama under its complex voting procedure give rise to the debate over who actually won the popular vote nationally In one view, Kennedy is credited with 318,303 Alabama votes, giving him the plurality of the votes nationally In another view, based upon the split between the Alabama Democratic electors (five electors casting their vote, as per their pledge, for Kennedy and six unpledged electors casting their vote for Senator Harry Flood Byrd), Kennedy is credited with 5/11 of the Alabama Democratic vote (147,295 popular votes), thereby giving Nixon the popular vote nationally Bernard Bailyn, The Ideological Origins of the American Revolution 162–163 (1967) Chris Patten, East and West: The Last Governor of Hong Kong on Power, Freedom and the Future, 47 (1998) Despite his apparent preference for getting rid of the functional constituencies altogether, Patten did note those based on a wider franchise were preferable to those that were not As he put it: ‘On the whole, the larger the number of voters and the more open the voting process the more defensible the functional constituency became Other constituencies were tiny, which led to corruption (the representative of 1991’s smallest constituency, covering a handful of voters from the Regional Council, went to prison for his electioneering methods) .’ Id See supra, text accompanying notes and The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, arts 25, 26, 39, 45 and 68 ‘Tycoons Prefer the Status Quo’, Financial Times (London), 31 May 2004, at 13 (‘The voting thing is an evolutionary process If you try to take it as a revolutionary process economically it produces very, very bad results.’) Alexandra Harney and James Kynge, ‘China’s Approach to Hong Kong Raises Doubts over One Country, Two Systems Policy’, Financial Times (London), 31 May 2004, at 13 The British Chamber of Commerce in Hong Kong, 2003 Annual Business Confidence Survey, https://www.britcham.com/asp/general.asp?MenuItemId=97 John Dickinson, ‘The Late Regulations Respecting the British Colonies’ [1765] in Pamphlets of the American Revolution, 1750–1776, 1:683, 688–89 (Bernard Bailyn & Jane N Garret, eds, Belknap Press of Harvard University 1965) Notes to Conclusion 389 Notes to Conclusion 10 11 12 13 14 15 16 17 Hong Kong Transition Project, http://www.hkbu.edu.hk/~hktp See HKSAR Government’s Constitutional Development Task Force’s First and Second Reports (2004), as well as Report by Chief Executive, 15 April 2004, http://www.cab.gov.hk/cd/eng/past/ Michael Ng, ‘Full democracy far off: Tsang’, The Standard, 18 June 2005 The Fifth Report of the Constitutional Development Task Force, 19 October 2005, http://www.cab.gov.hk/cd/eng/report5/ The Third Report of the Constitutional Development Task Force, ¶ 3.22–3.23, http://www.cab.gov.hk/cd/eng/report3/ See LC Paper No CB(2) 1774/00–01(01) for an explanation by the HKSAR Government of its proposal in the Chief Executive Election Bill that the chief executive should not have any political affiliation, http://www.legco.gov.hk/yr00-01/english/bc/bc63/papers/b1774e01.pdf See also Hansard, LegCo debate on the Chief Executive Election Bill for interesting comments about why the chief executive should not be affiliated to any political party, 11 July 2001 The HKSAR government’s proposal that a party member who wins the election must resign his party membership was based on what was described as Hong Kong’s ‘unique constitutional order’ and to serve the purpose of ensuring ‘proper functioning of the current political order’, to ‘encourage pluralism’, and the measure was described as ‘rational’ and ‘proportional’ The Fourth Report of the Constitutional Development Task Force, ¶ 3.19 summarised public views against the current arrangement Bearing in mind that the Chief Executive Election Ordinance was only passed in 2001 and in light of the government’s thinking just a few years ago, there has clearly been a change of heart, http://www.cab.gov.hk/cd/eng/report4/ An example was Tung Chee Hwa being given a long and friendly handshake by the then president, Jiang Zemin on a high-profile occasion in 1996 The Fourth Report of the Constitutional Development Task Force provides a summary of public views which included ones questioning the continuing relevance of the composition of the Election Committee, ¶ 3.05–3.11, http://www.cab.gov.hk/cd/eng/report4/ Article 45 Concern Group, Not The Task Force Report, 29 June 2004, ¶ 4–8, http://www.article45.org/public/contents/5120 Deng Xiaoping, ‘Speech at a Meeting with the Members of the Committee for Drafting the Basic Law of the HKSAR’, On the Question of Hong Kong, New Horizon Press, Hong Kong, 1993, pp 54–56 Edited transcript of interview reported in ‘HK democracy must forge its own path, not emulate others’, South China Morning Post, 26 June 2002 The Second Report of the Constitutional Development Task Force, pp 26–27, http://www.cab.gov.hk/cd/eng/report2/ Rita Fan, president of LegCo, ‘Democracy is More Than Just Direct Election’, Hong Kong Business, September 2004, pp 45–47 See Chapter for many useful references See Chapter for a full discussion Tung Chee Hwa highlighted the need to engage the middle class in his 2004 policy address, http://www.policyaddress.gov.hk/pa04/, and Rita Fan also made this point in ‘Democracy is More Than Just Direct Election’, Hong Kong Business, September 2004, p 45 390 Notes to Conclusion 18 Rita Fan also made this point in ‘Democracy is More Than Just Direct Election’, Hong Kong Business, September 2004, p 47 19 The Fourth Report of the Constitutional Development Task Force, December 2004, http://www.cab.gov.hk/cd/eng/report4/, ¶ 5.04 20 Tung Chee Hwa, Chief Executive Report to the SCNPC, April 2004, http://www.cab.gov.hk/cd/eng/executive/pdf/cereport.pdf 21 The First Report of the Constitutional Development Task Force, March 2004, http://www.cab.gov.hk/cd/eng/report/ 22 The Second Report of the Constitutional Development Task Force, April 2004, http://www.cab.gov.hk/cd/eng/report2/ 23 The Third Report of the Constitutional Development Task Force, May 2004, http://www.cab.gov.hk/cd/eng/report3/ 24 The Fourth Report of the Constitutional Development Task Force, December 2004, http://www.cab.gov.hk/cd/eng/report4/ 25 Ibid., ¶ 5.05 26 Ibid., ¶ 1.05 27 Ibid., ¶ 5.02 28 A Bicameral System for Hong Kong, Business and Professionals Federation of Hong Kong, July 2005, http://www.bpf.org.hk/bpf/BPFReports/reports.htm 29 Historically, upper houses have frequently been created to protect narrow interests that were usually moneyed or geographic-regional interests For example, in the case of Australia, all colonial (now state) upper houses were established in order to protect property interests (usually rurally biased) This phenomenon still exists in Western Australia’s upper house 30 Civic Exchange is especially grateful to Simon N.M Young, as well as the Hong Kong Democratic Foundation for sharing ideas Together, we presented our views on November 2006 at a conference organised by Civic Exchange, SynergyNet, and Hong Kong Policy Research Institute, see http://www.hkpri.org.hk/conference.html and http://www.civic-exchange.org/publications/2004/nov6-%20e.pdf 31 The Third Report of the Constitutional Development Task Force, ¶ 2.05 32 For the full Submission to the Constitutional Development Task Force, see Civic Exchange, ‘Views and Proposals: Methods for Selecting the Next Chief Executive and for Forming the Legislative Council in 2008’, http://www.civic-exchange.org/publications/2005/4TF%20Sub%20-%20E.pdf, 31 May 2005 33 This represents approximately 13% to 15.5% of all registered voters in the geographical constituencies (3.2 million) 34 The Third Report of the Constitutional Development Task Force, ¶ 2.05 35 There have been consistent calls, as can be seen in The Fourth Report of the Constitutional Development Task Force, to create constituencies for either women or home-makers We believe creating a Home Economics Functional Constituency where two legislators are returned would satisfy these calls 36 We believe that registered charities represent a large group of non-government organisations that contribute substantially to the economy as shown in the Central Policy Unit’s study of the Third Sector, http://www.cpu.gov.hk/english/research_reports.htm 37 Unlike for the chief executive subsector election, we believe there is no need to reduce the number of seats of the Labour Functional Constituencies and to give one to employers as their voices and interests are adequately represented in the Executive Council as well as LegCo 38 The Fourth Report of the Constitutional Development Task Force, ¶ 3.02 39 Ibid., ¶ 3.03 ... future, the functional constituencies will need to be replaced by geographical constituencies Thus, there is a growing need to understand the value and impact of functional constituencies in considering... Research Project Functional constituencies have long been a feature of Hong Kong’s political landscape Now, with half the members of Legislative Council elected from functional constituencies, they... Functional and geographical constituencies 63 Arrangements of the 2004 election 66 Historical development of functional constituencies